A decade ago, Cameron Fox decided she wanted to hone her trial experience skills when she moved from a small boutique to join Paul Hastings. The Los Angeles-based attorney took leave from the firm to become a deputized district attorney in order to get to court at an early stage in her career.
Fox, now a employment partner, said she uses those skills in her advocacy for big tech companies like Google Inc. and for startups still working out of their garages—helping clients navigate the collision of decades-old labor law and modern workforces.
Fox is fighting at least two cases now in defense of Google in state court, including a suit in which a former engineer claims he was fired for speaking out against the company’s diversity efforts.
In addition to labor and employment matters, Fox focuses on executive mobility and intellectual property and has emerged as a leader in transgender workplace issues. Fox has worked for Paul Hastings for 11 years. Since then, the firm has created a pathway for other associates, including junior associates, to gain trial experience, something not typically available at the beginning of careers at big firms.
Fox this week spoke to ALM about what she’s working on and what she predicts for the future of employment law. This interview was edited for length and clarity.
The Recorder: What is the state of legal clashes, such as with Google, in the tech industry?
Fox: With regard to large tech companies generally, they can often be easy targets. That’s true of all the Silicon Valley companies. Startups have the same issues. The modern workplace and the modern employment environment is a very interesting background for understanding the National Labor Relations Act, especially looking at startups getting off the ground. It’s so dramatically different from the workplace when the NLRA was drafted. Meanwhile, the NLRA has changed little. The workplace now is so different. One of the areas where I have been able to provide real value to companies is with tech companies and startups and being able to marry the really important principles and a culture of innovation and an interactive workplace that is thoroughly modern.
Many different employers in the last year, year-and-a-half, have seen a certain amount of pushing back on diversity and inclusion initiatives. I have other clients, other than Google, who have faced this issue. It’s almost like a backlash against diversity and inclusion programs. In the minds of some employees, the company went too far and excluding those in the majority and men. This is not something we were hearing much before 2016. But 2017 and 2018 are proving to have that theme. They are all interconnected. I don’t know if I can pin down the causation. A lot of these, the #MeToo movement, the backlash that many companies have seen against certain diversity and inclusion practices—they have all been brewing for awhile. It’s a very interesting time as a country—a very divisive time. Both living and working in the workplace, the distinction has blurred a lot. The divisiveness we see politically we see in workplaces around the country.
What are some examples of this trend among startups and tech companies, clashing with traditional labor law?
True innovation comes out of the culture. It’s not as much of a top-down environment as it used to be. It’s a value for tech companies but how the NLRA is written is from top-down management and an “us v. them” mentality. The question becomes how employee rights apply in the modern era. The law often assumes a bright line between management and the employee workforce. It assumes that communication isn’t flowing freely the way it is today. Think of, in particular, a small tech startup—and everyone is working together and titles don’t matter. Everyone is working around the clock to take the market in a particular area and to truly innovate. The environment is collaborative and fluid. It’s not the kind of environment the act was considering or could imagine when it was written.
Employee rights are very core rights, such as the rights of employees to negotiate wages and terms of conditions of employment. When you try to apply these rights to an innovative, small and medium-size technology company, that doesn’t always transfer well. Tech companies need to understand how their workplaces are set up to allow people to collaborate and what compliance under the NLRA will look like in a collaborative environment.
Here’s an example, a company needs to be able to protect their intellectual property. To be innovative, protecting their IP is paramount. They could potentially overreach in their policies such that they end up restricting employees where there are NLRA rights. There is a tension there. For many years, a lot of companies did not realize that there might be limitations on their policies—what they could restrict employees from talking about. Understanding how it all overlays, or at least connects, with those policies and rules is really important.
What changes have you seen under the Trump administration?
The change that we’ve seen from the National Labor Relations Board with respect to conduct and handbooks is significant. We are seeing a shift to a place where employers are empowered to take issue before it becomes a problem and nip it in the bud and prevent toxic environments from forming. What had happened under the prior administration and under the former general counsel Richard Griffin, the board was scrutinizing handbook policies relating to employee conduct in the workplace. Specifically, when we talk about civility rules it’s how much an employee can mouth off to a supervisor. They were taking a hard look adjusting for that era of authority. Now, more recently [a recent decision] set out a new framework. It returns us to a place where companies are more empowered.
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The California state agencies, from what I can tell, remain committed to their agendas. At the NLRB, we have seen initial changes and expect more when they return to the Republican majority. The general counsel has made it clear he will shift gears in prosecuting cases. In some ways, these changes benefit everyone. Being able to take action as an employer when one employee is mistreating another and handle that swiftly and protecting the rights of employees in the workplace. That’s good for everybody—the management and union.
How is working in California distinct from the rest of the country?
California tends to lead the country as far as employee rights. The transgender rights issue is a classic example of that. Here we are seeing the debate under federal law but protections here have long been settled. The state has been clear that it will push for wide protections in the workplace and create more obligations for employers. They aren’t necessarily a surprise. New regulations come out in California for a certain number of years. It does mean we have cutting-edge interesting issues. I’ve got the best of both worlds. My NLRA work covers federal law and my harassment discrimination practice and executive mobility is California state law.
What other issues are you watching?
There are traditional labor issues colliding with interesting cutting-edge issues. In California, in particular, it’s been interesting to watch the discussion about gender identity in the workplace. We are talking about transgender rights and transition plans in the workplace. There are not a lot of employment lawyers working through transitioning employee at work. I am working on advising companies on making sure the process goes as smoothly as possible. Sometimes employers are not sure how to handle it and want to minimize the discussion of the transition. That’s the opposite of what should be done. Part of my job is to get these issues in front of people, for them to think and talk about them.
With the #MeToo movement and everything that has come after it, it has become obvious how important it is to monitor civility in the workplace and to be thoughtful about employee rights, particularly when it comes to harassment issues.
Is there anything unique Paul Hastings is developing to serve its clients?
We have our own huge group working with artificial intelligence to mine through data. A system, developed in-house, that even more efficiently uses through systems to identify key evidence. This becomes an issue where an employee has sensitive documents or intellectual property or received impurely having an advanced system. The system is able to go through hundreds of thousands of files and decide what is potentially relevant. This is a huge leap forward.
We have also been building out our trial expertise, especially in areas of law that don’t commonly go to trial and where having the knowledge and skill to do it is special. We have an emphasis on positioning ourselves to take the cases to trial. These niches that are hugely important and having a team that has gone to trial before a jury is a really big deal for us. One of the things within the employment law department in particular is we are big on looking for opportunities to allow our associates to go to trial. In our department we go to trial quite a bit. There is a culture here: Teach and be taught. We are looking for as many opportunities for associates to try cases.
We look even at junior associates to give that early responsibility. Midlevel and senior associates will split the trial down the middle, not just a token witness here or there. That’s how you develop.